From Casetext: Smarter Legal Research

Mann v. McVay

Supreme Court of North Carolina
Dec 1, 1820
8 N.C. 226 (N.C. 1820)

Opinion

December Term, 1820.

The certificate of the justice of the peace required by the "act to punish persons for removing debtors out of one county to another" is intended solely for the benefit of the person who removes the debtor, it is only a mode of proof that the debtor has duly advertised.

Held, therefore, that it may be obtained at any time, either before or after the removal, and it may be dispensed with altogether if the party can make the same proof by other testimony.

THIS was an action on the case, brought under the act of 1796, for the removal of Morgan, a debtor to the plaintiff, from the county of PERSON to the county of ORANGE. The removal was on 23 December, in the evening. On 13 December, in the morning, Morgan advertised his intention to remove at a store and at a tavern in Person, which were both public places, and also at the dwelling-house of J. B., one of the justices of the peace for that county. B. lived on the main road leading through the county, and gave private entertainment to travelers for compensation. The advertisement that was set up at B.'s was handed to him by Morgan himself, who remarked that he was indebted and intended to remove, and was unwilling to subject any other person to the payment of his debts, and requested B. to set it up where he thought proper upon his premises, and to do whatever was necessary under the act of Assembly to enable any person to remove him safely. B. then set up the advertisement at his own door, and told Morgan that was all that was necessary; and he did not then give him the certificate required by the act. The plaintiff lived five or six miles from Morgan and from B., but he knew of the removal and took no steps to prevent it or to have process served upon Morgan. After the bringing of this suit the justice of the peace gave a certificate of these facts, which was read in evidence upon the trial; and the defendant also (227) proved them by the testimony of B. and other witnesses given in open court. On the part of the plaintiff the court was moved to instruct the jury that the plaintiff was entitled to recover, notwithstanding the certificate and the testimony of the witnesses, because the certificate was not given before the removal, and because the facts could be proved by such a certificate only, which instruction the court refused to give. The counsel for the plaintiff then moved the court to instruct the jury that he was entitled to recover because the house of B. was not a public place, which instruction the court also refused to give. The jury found a verdict for the defendant, who had judgment, and the plaintiff appealed to this Court because the court refused to give the instructions as prayed for. The judgment was entered in the court below on the second Monday of September, 1820, and the appeal was of course taken to the present term of this Court.

The case was not argued on the part of the appellant.

Ruffin for the appellee.


After repeating the words of the statute he proceeded to state that the certificate is intended exclusively for the benefit of the defendant to enable him to ascertain whether a person whom he is about to remove has advertised according to law. If he can assure himself of that fact and chooses to run the risk of proving it by other evidence he may do so, and it is of no importance at what time the certificate issues or whether it ever issues. If he can satisfy the jury at the trial that the party did advertise according to law, the substantial provisions of the act will be complied with. It seems also to be the clear intent of the act that the justice's house shall be deemed a public place within the object of the law, and any other public place on the premises of the justice which he may direct must equally be considered so, because the debtor could exercise no control over the justice who was to a certain degree in the performance of a judicial act. The charge of the court appears to have been perfectly correct.

Nothing was said upon the last point taken in the argument, but by the whole Court the judgment was

Affirmed.

(231)


Summaries of

Mann v. McVay

Supreme Court of North Carolina
Dec 1, 1820
8 N.C. 226 (N.C. 1820)
Case details for

Mann v. McVay

Case Details

Full title:MANN v. McVAY

Court:Supreme Court of North Carolina

Date published: Dec 1, 1820

Citations

8 N.C. 226 (N.C. 1820)